EXAM NO. ___________ Professor Brant

Constitutional Law Seminar December 10, 1996

GRADE POSTING: If you do not wish to have your grade posted (by exam number) in this course, please place an X by your number on the exam and on your answer.

1. This exam is "open universe." Any source materials may be used.

2. Typing your answer is strongly encouraged, but not required.

3. Twenty-four hours will be allotted for the examination. If an exam is turned in more than 24 hours after it has been signed out, substantial points will be deducted.

4. There is no presumption that use of a case name results from knowledge of its contents. Discuss and analyze any case law you plan to use in your answer.

5. You must turn in your examination with your answer.

6. You may not discuss this examination with anyone, either while you are taking it, or at any time during the examination week.

QUESTION ONE:

In the spring of 1995, the Christian Legal Society (CLS) approached The Ohio State University School of Law, (OSU) a public institution, and requested permission to conduct interviews on-campus. OSU responded by sending out a schedule of proposed on-campus interview dates, together with a copy of the University's non-discrimination policy, which all prospective employers were required to sign. CLS attorneys reviewed the non-discrimination policy, and noted that it prohibited discrimination on a variety of grounds, including religion and sexual orientation. Accordingly, CLS wrote back to OSU and stated that they were happy to abide by all aspects of the policy except the prohibition on religious and sexual orientation discrimination. CLS explained that any summer associate they hired would have be Christian, and have a heterosexual sexual orientation, in keeping with the religious mission and principles of CLS. Ohio State then refused to permit CLS to interview on campus, citing their refusal to comply with the non-discrimination policy.

As it happened, OSU had an active chapter of CLS on campus. The group received funding from mandatory student dues, which were distributed to all student groups by the OSU Student Bar Association. When the campus chapter learned that the national CLS organization had been denied on-campus interviewing privileges, they wrote a letter to the Dean, complaining of hypocrisy and unfair treatment. They pointed out that the student chapter of CLS was funded by the law school, and that only committed Christians were eligible to serve as officers of the student group. They also pointed out that Ohio State put up a decorated Christmas tree in the law school lobby, topped with an angel, and that a creche and a menorah (both University-owned) were placed on campus grounds in front of the law school each December, together with other seasonal decorations. Finally, they noted that the National Abortion Rights Action League (NARAL) and the Sierra Club both interviewed on campus, even though those organizations would only hire law students committed to their respective causes.

You have been called in as counsel to the law school. The Dean has requested a memorandum, summarizing the law on these issues and setting forth your recommendations for handling the controversy. Please draft the memo.

QUESTION TWO:

If you could change the result in three cases that we have read during this semester, which three would you choose, and how would you resolve them differently? What effect would the changes you propose have on the Court's religion clause jurisprudence?